What’s Justice? Who Should Appoint Scalia’s Replacement?

Photo courtesy of oyez.org | Justice Scalia's death has caused a vacancy on the court.

Photo courtesy of oyez.org | Justice Scalia’s death has caused a vacancy on the court.

Emily Kowalik ’18
Assistant Copy Editor 

Justice Antonin Scalia’s death on Feb. 13 places the Supreme Court as a central issue in this year’s heated presidential primaries.

The struggle between the Obama administration and Senate Republicans to decide who will fill the empty seat on the Court will likely be hostile and divisive, as the choice will influence decades of decisions to come. While the outcome is anyone’s guess, my hope is that President Obama will successfully nominate a moderate or liberal justice.

Possible Obama nominees include Loretta Lynch, Sri Srinivasan, Paul Watford and Merrick Garland. Obama will likely be choosing his appointee in a couple of weeks, and, if he hopes to have his nominee confirmed, he would be wise to nominate a moderate candidate who would be agreeable to everyone.

Such a candidate is Sri Srinivasan, currently a circuit judge of the United States Court of Appeals for the District of Columbia. His 2013 Senate confirmation hearing to be appointed to a seat on the D.C. Circuit was without incident, and he was confirmed 97–0.

If Obama were to nominate this candidate, it would place Republicans in a difficult position, as their motives for not approving him would be seen as suspect and obstructive, since he was deemed an impeccable nominee a mere three years ago. Since several Senate seats may find themselves determined by this appointment issue, Senate Republicans, especially in blue states that Obama won, may risk being ousted if they show themselves to be hypocritical.

The crux of the opposition between the Obama administration and the Republicans in Congress lies in who is going to appoint the next justice — President Obama or, as some Republicans dream, future President Donald Trump. Right now, Republicans are scrambling to deprive Obama of his constitutionally given — Article II, Section 2, Clause 2 — right to appoint Supreme Court Justices.

Sen. Mitch McConnell has already declared, in a shockingly swift reaction to Scalia’s death, his opinion that the next president should be the one to nominate a replacement for this vacancy. There has also been consideration among Senate Republicans to delay any nominee the president makes.

Those who advocate for postponement have been arguing, among other things, that the decision of the next justice should be indirectly deferred to the American people in that they will elect the next president, who will appoint the next Supreme Court Justice.

However, it is evident that this argument is only a weak ploy, cast in an effort to have an additional conservative, as opposed to additional liberal, justice on the bench for the next few decades.

If confirmation were to be postponed until the term of the next president, the Supreme Court would be short its ninth justice for an extraordinary lengthy, yearlong vacancy.

The White House won’t have an easy time finding Republicans to join the Senate’s 47 Democrats to support Obama’s nominee. The confirmation votes of Justice Sonia Sotomayor and Justice Elena Kagan demonstrate the lengths that Senate Republicans have gone to obstruct Obama’s appointments in the past.

Scalia, appointed by Ronald Reagan in 1986, will likely be remembered as an acerbic, unwavering conservative and the paragon of originalists and textualists. He was also one of the more eloquent writers on the court, despite the fact that he didn’t author many trailblazing majority opinions.

Scalia’s absence from the court will considerably change the balance of power on the bench. Before Justice Scalia’s death, there had been many 5-4 decisions on controversial issues because the court divided itself into blocs of four conservatives (Scalia, Alito, Roberts, Thomas) and four liberals (Kagan, Sotomayor, Breyer, and Bader Ginsburg), with the ninth justice, Justice Kennedy, representing the swing vote on the Court.

Without a ninth justice, it is likely that the Supreme Court will come to a considerable number of 4-4 decisions until a successor for Scalia is confirmed. Cases in which the court comes to a 4-4 tie result in the decision of the circuit court of appeals standing.

Until the Scalia vacancy can be filled, I look forward to unexpected outcomes in upcoming rulings in cases such as Evenwel v. Abbott, Fisher v. University of Texas at Austin, Friedrichs v. California Teachers Association, Whole Women’s Health v. Cole and Zubik vs. Burwell, cases which concern one person/one vote, affirmative action, public union dues, abortions and Obamacare, respectively.

It is evident that stakes are high, as this appointment of a justice – and whether said justice will have a liberal or conservative bent – will definitely have a huge influence in the Court’s decisions for many years to come.

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